Law | National

Conservative group to file class action lawsuit to challenge ICWA

Monday, July 6, 2015

Cherokee Nation Chief Bill John Baker discusses an Indian Child Welfare Act case that went before the U.S. Supreme Court in 2013. Dusten Brown, in sunglasses, was forced to give up his daughter after the justices ruled against him. Photo from National Congress of American Indians / Flickr

The conservative Goldwater Institute of Arizona is mounting a legal challenge to the Indian Child Welfare Act.

The group plans to file a class action tomorrow that will dispute the constitutionality of the law, which Congress enacted in 1978 to prevent Indian children from being taken from their tribal communities. The lawsuit will be accompanied by a report into Indian child welfare practices across the nation.

"When an abused child is removed from his or her home and placed in foster care or made available for adoption, judges are required to make a decision about where the child will live based on the child’s best interest. Except for Native American children," said Darcy Olsen, president of the Goldwater Institute. "Courts are bound by federal law to disregard a Native American child’s best interest and place the child in a home with other Native Americans, even if it is not in his or her best interest."

The new challenge joins one in federal court against the Minnesota Indian Family Preservation Act, a 1985 law that also was designed to keep Indian children connected to their families. A federal judge last Thursday declined to issue a preliminary injunction requested by the plaintiffs, determining that they failed to show how they will be harmed by complying with the law.

Additionally, a federal court lawsuit in Virginia disputes the constitutionality of ICWA. The National Council for Adoption and Building Arizona Families are questioning new guidelines and regulations issued by the Bureau of Indian Affairs that were drafted to strengthen compliance with the law.

All three lawsuits effectively seek to go where the U.S. Supreme Court refused to in Adoptive Couple v. Baby Girl, an ICWA case from 2013. Although the justices ruled against a Cherokee Nation father whose biological daughter was adopted by a non-Indian couple without his consent, they declined to rule on the constitutionality of the law.

The new case and report will be announced tomorrow at 12pm Eastern time on the Goldwater Institute's YouTube channel.